Kimberley-Clark Australia Pty Limited v Secretary to the Department of Industry Tourism and Resources [2004] FCA 1438

FEDERAL COURT OF AUSTRALIA

Kimberley-Clark Australia Pty Limited v Secretary to the Department of Industry Tourism and Resources [2004] FCA 1438 ADMINISTRATIVE LAW – subordinate legislation – financial assistance by government to Australian resident manufacturers – textile, clothing and footwear industry – whether manufactured products fall within categories designated for assistance under statutory scheme – consideration of manufacturing process and nature of products manufactured – government decision below adverse to manufacturer upheld by AAT – whether AAT decision vitiated by erroneous construction of subordinate legislation – relevance of amendments to subordinate legislation after decision-making and prior to administrative review

Textile, Clothing and Footwear Strategic Investment Program Act 1999 (Cth), ss 3, 8, 112), 14(2) and 85A(1) Textile, Clothing and Footwear Strategic Investment Program Scheme 1999, Part 1 of Schedule 1 Acts Interpretation Act 1901 (Cth), ss 15AA(1) and 15AB(1)

The Australian Gas Light Co v The Valuer General (1940) SR (NSW) 126, applied Hepples v Federal Commissioner of Taxation (1991-1992) 173 CLR 492, referred to Grain Elevators Board (Vic) v Dunmuncle Corporation (1946) 73 CLR 70, referred to Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 2 KB 403, referred to Commissioner for Inland Revenue v Hang Seng Bank Ltd [1991] 1 AC 306, referred to Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203, referred to Interlego AG v Croner Trading Pty Limited (1992) 39 FCR 348, referred to Birch v Allen (1942) 65 CLR 621, applied Rose v Department of Social Security (1990) 21 FCR 241, distinguished KIMBERLEY-CLARK AUSTRALIA PTY LIMITED v SECRETARY TO THE DEPARTMENT OF INDUSTRY TOURISM AND RESOURCES NSD 1120 OF 2003

CONTI J 8 NOVEMBER 2004 SYDNEY